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Senate Bill Would Ease Job-Discrimination Lawsuits

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Washington--Despite a bitter partisan clash and a veto threat, the Senate July 18 approved a civil-rights bill that would strengthen the hand of employees--including those in schools--who charge their employers with job discrimination.

The bill aims to reverse several recent U.S. Supreme Court decisions considered unfavorable to employees, but also includes unrelated provisions boosting worker rights.

The most controversial provision would require employers to bear the burden of defending employment practices once an employee establishes that they have a negative impact on minorities or women. It aims to reverse a 1989 ruling that employees must prove that a statistical disparity is caused by a particular policy and that the policy is not a legitimate business practice.

As introduced in February, the legislation would have required employers to prove that the disputed criteria were "essential" to performance of the job. Supporters later softened that, requiring that hiring practices have a "demonstrable relationship to job performance" and that other rules, such as those governing promotions, relate to "significant business objectives."

Critics argue that even the eased standards would be difficult to meet, and employers would resort to hiring quotas to avoid lawsuits.

Other provisions of S 2104 would:

  • Allow victims of intentional discrimination to sue for compensatory and punitive damages under the Title VII job-discrimination law, effectively allowing bias victims other than racial minorities to collect damages for the first time.
  • Specify that Section 1981, a 19th century anti-bias law that applies only to race, forbids discrimination on the job, not just in hiring.
  • Allow victorious employees to recover attorneys' fees in some cases.
  • Forbid employers from using race, religion, sex, or ethnicity as a factor in employment decisions, even if the same decision would have been made for other reasons.
  • Allow a worker to challenge a seniority plan when it causes harm. Challenges are now limited to the time the plan is adopted.
  • Provide that a person who did not intervene while a discrimination suit was being settled could not later challenge a court order.

"This is going to be as problematic for schools as for everybody else," said Gregory A. Humphrey, director of legislation for the American Federation of Teachers. "There's going to be a period when nobody knows what it means, and it's going to hit schools like everybody else."

Other observers said schools may fare better than private employers.

"Schools are public enterprises, and while they're not perfect, they tend to be a little more sensitive," said Bruce Hunter, associate director of the American Association of School Administrators.

He noted that areas with many minority residents often have minority administrators and school-board members, and that schools "are begging for minorities to enter teaching and administration."

"It's only lately that the top posts have been open to women," he said, "but that's happening rapidly and even there I think we're in a better position than industry."

However, provisions allowing women to sue for damages could potentially bust a lot of school budgets, as so many teachers are women, said Gwen Gregory, deputy general counsel for the National School Boards Association.

Observers agreed that the way the "burden-of-proof" provision is ultimately worded is crucial.

"'Essential' would have been a real problem," Ms. Gregory said. "It's not 'essential' to be graduated from grade school to be a teacher. We require teaching experience to be a principal; is that 'essential?"'

The key language could face further changes as the House considers HR 4000, its version of the bill, and in a House-Senate conference.

That provision was reportedly a hot topic in eight weeks of negotiations between Senator Edward M. Kennedy, the chief Senate sponsor, and White House officials. President Bush has vowed to veto the bill in its present form, but has said he wants to sign a civil-rights bill.

Senate Democrats were able to choke off debate on the bill July 17 on a 62-to-17 vote, two votes more than needed, after the negotiations broke down with each side blaming the other. Republicans, particularly Minority Leader Bob Dole, erupted in anger when debate and amendments were forestalled, but 10 Republicans helped approve the bill, 65 to 34.

The incident left some bitterness, but the Administration is reportedly willing to reopen talks, and Mr. Kennedy said he was willing to accept at least one demand, for a cap on the amount of punitive damages an employee can collect.

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